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Zettlemoyer v. Fulcomer

filed: January 16, 1991.

KEITH W. ZETTLEMOYER, APPELLANT,
v.
THOMAS A. FULCOMER, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT HUNTINGDON, PENNSYLVANIA AND HONORABLE LEROY S. ZIMMERMAN, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEES



On Appeal from the United States District Court for the Middle District of Pennsylvania; Civil Action No. 87-0993. October 12, 1990, Reargued.

Sloviter, Greenberg, and Nygaard, Circuit Judges.

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge

Petitioner Keith W. Zettlemoyer appeals to this court from an order of the United States District Court for the Middle District of Pennsylvania entered May 31, 1988, dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. We will affirm the order of the district court dismissing Zettlemoyer's petition.

I. PROCEDURAL AND FACTUAL HISTORY

Zettlemoyer murdered Charles DeVetsco on October 13, 1980, one week before DeVetsco was to be a witness for the Commonwealth of Pennsylvania at a trial of several felony charges against Zettlemoyer. Two police officers arrested Zettlemoyer, who was heavily armed, after they heard the shots that killed DeVetsco at a railroad yard in Harrisburg in the early morning hours. The unmistakable inference from the evidence is that Zettlemoyer, who knew that DeVetsco was to be a witness at the ensuing trial, kidnapped and executed him so that he could not testify.

At the murder trial in the Dauphin County Court of Common Pleas, Zettlemoyer did not contest that he had killed DeVetsco but presented a defense of "diminished capacity." The jury returned a verdict of guilty of first degree murder and on the same day determined that a death sentence should be imposed under 42 Pa. Cons. Stat. Ann. § 9711 (Purdon 1982 & Supp. 1990), the germane portions of which provide:

(a) Procedure in jury trials. --

(1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.

(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).

(3) After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c).

....

(c) Instructions to the jury. --

(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:

(i) the aggravating circumstances specified in subsection (d) as to which there is some evidence.

(ii) the mitigating circumstances specified in subsection (e) as to which there is some evidence.

(iii) aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by the defendant by a preponderance of the evidence.

(iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

....

(d) Aggravating circumstances. -- Aggravating circumstances shall be limited to the following . . .

....

(5) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.

....

(e) Mitigating circumstances. -- Mitigating circumstances shall include the following:

(1) The defendant has no significant history of prior criminal convictions.

(2) The defendant was under the influence of extreme mental or emotional disturbance.

(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(4) The age of the defendant at the time of the crime.

(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution . . . or acted under the substantial domination of another person.

(6) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal acts.

(7) The defendant's participation in the homicidal act was relatively minor.

(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

42 Pa. Cons. Stat. Ann. §§ 9711(a)-(e).

After the Court of Common Pleas denied Zettlemoyer's post-trial motions, he filed a direct appeal to the Supreme Court of Pennsylvania which affirmed his conviction and sentence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983).*fn1 Zettlemoyer then filed a petition seeking a new trial in the Court of Common Pleas under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa. Cons. Stat. Ann. §§ 9541-9551, but on August 26, 1985, that court denied the petition without a hearing.*fn2 Commonwealth v. Zettlemoyer, 106 Dauphin County Repts. 215 (1985). Zettlemoyer appealed from the denial of the petition to the Superior Court which affirmed on July 2, 1986. Commonwealth v. Zettlemoyer, 359 Pa. Super. 631, 515 A.2d 620 (1986). He then sought leave of the Supreme Court of Pennsylvania to appeal, but that application was denied by order dated December 23, 1986. Commonwealth v. Zettlemoyer, 513 Pa. 34, 518 A.2d 807 (1986). Zettlemoyer then filed a petition for a writ of certiorari in the United States Supreme Court on February 13, 1987, but it, too, was denied on April 6, 1987. Zettlemoyer v. Pennsylvania, 481 U.S. 1007, 107 S. Ct. 1634, 95 L. Ed. 2d 207 (1987).

On July 17, 1987, Zettlemoyer filed his petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania challenging the constitutionality of the Pennsylvania death penalty statute, alleging errors by the trial court, and asserting that he had had ineffective assistance of trial counsel. In the petition Zettlemoyer set forth that he was arrested while heavily armed in the early morning hours of October 13, 1980, when the police officers heard the gun shots. Zettlemoyer admitted being acquainted with DeVetsco and acknowledged that DeVetsco was scheduled to testify against him in criminal proceedings in Snyder County. Zettlemoyer made no claim in the petition that he had not murdered DeVetsco.

Zettlemoyer set forth that the Pennsylvania death penalty statute is unconstitutionally mandatory and vague, and unconstitutionally shifts the risk of nonpersuasion because defendants must prove mitigating circumstances by a preponderance of the evidence. He also urged that his trial counsel was ineffective in failing to present competent psychological testimony on the issue, central to his defense, of diminished capacity, and in failing to present psychological testimony at the sentencing phase. He asserted that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty and thus violated the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer led to believe that responsibility for determining the appropriateness of the defendant's death rests elsewhere. He further contended that the trial court erred by failing to instruct the jury that if it was unable to agree unanimously that the death penalty should be imposed, it was free to decide by less than a unanimous vote to impose a life sentence under 42 Pa. Cons. Stat. Ann. § 9711(c)(1).*fn3

The district court dismissed the petition in a memorandum opinion and order. Zettlemoyer v. Fulcomer, No. 87-0993 (M.D. Pa. May 31, 1988).*fn4 It explained that the Pennsylvania death penalty statute is not unconstitutionally mandatory because it "mandates a sentence of death only after a jury acting with channeled discretion finds that aggravating circumstances outweigh mitigating circumstances." Id. at 20 (citing Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985)). The court continued that the statute is not unconstitutionally vague because "under Pennsylvania law, the Commonwealth has the burden of proving beyond a reasonable doubt every element of the offense in the guilt phase of the trial, as well as proving the aggravating circumstances beyond a reasonable doubt." Zettlemoyer, slip op. at 21. It reasoned that the statute eliminates total arbitrariness and capriciousness and appropriately channels the sentencer's discretion because it "focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed." Id. (quoting Proffitt v. Florida, 428 U.S. 242, 258, 96 S. Ct. 2960, 2969, 49 L. Ed. 2d 913 (1976)). The court also rejected Zettlemoyer's challenge that the statute impermissibly shifts the risk of nonpersuasion to defendants, citing Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), for the holding that it was proper to place the burden of proving an affirmative defense on the defendant. Zettlemoyer, slip op. at 22.

The court rejected Zettlemoyer's argument that his trial counsel was ineffective for not identifying and retaining a psychiatrist or specially-qualified psychologist competent to offer an expert opinion on his ability to form the specific intent to commit first degree murder, as he did not demonstrate prejudice from this omission. Id. at 13 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984) (defendant must show counsel's deficient performance prejudiced defense so that it deprived him or her of a fair judicial proceeding with reliable result)). Likewise, the court found that counsel was not ineffective for failing to recall the psychologist who testified during trial at the sentencing phase because Zettlemoyer's father testified at the sentencing hearing, thus reinforcing his diminished capacity defense in the minds of the jury. Zettlemoyer, slip op. at 30.

Finally, the court found that the trial court's charge, when taken in its entirety, "properly explained to the jury the role which they were to play in weighing the aggravating and mitigating circumstances." Id. at 32. Additionally, the court found that the entire charge complied with the requirements of 42 Pa. Cons. Stat. Ann. § 9711(c)(1) because "the court informed the jury that the only possible way it could return a sentence of death would be if the Commonwealth proved beyond a reasonable doubt, and the jury unanimously agreed, that there was an aggravating circumstance and no mitigating circumstances, or that the aggravating circumstances outweighed any mitigating circumstances." Zettlemoyer, slip op. at 32. The court, therefore, dismissed the petition, stating in its order that "any appeal from this order will be deemed frivolous, lacking in probable cause and not taken in good faith." Id. at 35.

Zettlemoyer then appealed to this court on June 29, 1988, and we subsequently issued a certificate of probable cause and scheduled oral argument for March 30, 1989. However, on March 27, 1989, the United States Supreme Court granted certiorari in Blystone v. Pennsylvania, 489 U.S. 1096, 109 S. Ct. 1567, 103 L. Ed. 2d 934 (1989), on the question of whether the Pennsylvania death penalty statute is unconstitutional because "it improperly limits the full discretion the sentencer must have in deciding the appropriate penalty for a particular defendant." Accordingly, though we did hear oral argument on March 30, 1989, we deferred decision on the appeal pending disposition of Blystone.

On February 28, 1990, the Supreme Court held that the Pennsylvania death penalty statute, notwithstanding its "mandatory" language, satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and, therefore, does not violate the Eighth Amendment's proscription against cruel and unusual punishment. Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 1082, 108 L. Ed. 2d 255 (1990). The Court found that the death penalty is not automatically imposed for certain types of murders; rather, "it is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances." Id. 110 S. Ct. at 1082-83.

Following the decision in Blystone, we called for and received additional briefs and heard argument again. In his supplemental brief, Zettlemoyer argues that the Pennsylvania death penalty statute is unconstitutional as applied to him, attempting to distinguish Blystone on the basis that in Blystone the petitioner presented no mitigating circumstances whereas he had done so. Zettlemoyer argues that the mandatory result of the jury's process of weighing aggravating and mitigating circumstances excluded it from making a "unique judgment" about him as a "specific defendant." Additionally, he reiterates the ineffective assistance of counsel and improper jury instruction arguments made to the district court.

II. DISCUSSION

A. Scope of Review

Our scope of review is limited as we sit not to retry state cases de novo but rather to examine the proceedings in the state court to determine if there has been a violation of federal constitutional standards.*fn5 Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178, 33 L. Ed. 2d 1 (1972). Accordingly, we do not exercise the supervisory power that we might possess on an appeal from a conviction in the district court. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974). Where, as here, a district court has denied a petition for habeas corpus without holding an evidentiary hearing, our review consists of a two-step analysis. Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989) (citing Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir. 1989)). First, we must determine whether the petitioner has alleged facts that, if proved, would entitle him to relief. Smith, 892 F.2d at 338 (citing Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 756-57, 9 L. Ed. 2d 770 (1963); Toomey, 876 F.2d at 1435). If so, we must then decide whether an evidentiary hearing is necessary to establish the truth of those allegations. Smith, 892 F.2d at 338 (citing Townsend, 372 U.S. at 312-19, 83 S. Ct. at 756-60; Toomey, 876 F.2d at 1435). We therefore consider the facts in this case in the light most favorable to Zettlemoyer. Smith, 892 F.2d at 338 (citing Keller v. Petsock, 853 F.2d 1122, 1128 (3d Cir. 1988)). Of course, his contentions implicating the interpretation and application of legal precepts receive plenary review. Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir. 1983) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir. 1981)). Furthermore, we freely review the district court's conclusions regarding the competency of Zettlemoyer's trial counsel. Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir. 1990).

B. The Blystone Ruling

Zettlemoyer's argument that the Pennsylvania death penalty statute is unconstitutional as applied to him centers on the instruction to the jury that it was required to impose the death penalty if the result of a weighing process tipped in favor of the aggravating circumstance. He contends that the jury's discretion in applying the death penalty was thus unconstitutionally removed and he could not be individually judged.

In Blystone, the Supreme Court held that, notwithstanding its "mandatory" language, the Pennsylvania death penalty statute is not unconstitutional on its face because it satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and because the death penalty is not automatically imposed for certain types of murders. The Court explained that rather "it is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances." Blystone v. Pennsylvania, 110 S. Ct. at 1082-83. Additionally, the Court held that the statute was not unconstitutional as applied to Blystone who was convicted of first-degree murder, robbery, criminal conspiracy to commit homicide, and criminal conspiracy to commit robbery. Id. at 1084. The jury which convicted Blystone returned a death penalty verdict after finding, pursuant to Pa. Cons. Stat. Ann. § 9711(d)(6), the aggravating circumstance that Blystone committed a killing while in the perpetration of a felony and further finding that there were no mitigating circumstances.*fn6 110 S. Ct. at 1081.

The Court rejected Blystone's argument that where a jury found there were no mitigating circumstances, mandatory imposition of death violated the Eighth Amendment requirement of individualized sentencing since the jury was precluded from considering whether the severity of the aggravating circumstance warranted the death penalty. Id. at 1083. The Court explained that "the presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by a jury. . . . The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Id. (emphasis added) (citing Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 554, 98 L. Ed. 2d 568 (1988)). Finding that the trial court "specifically instructed the jury to consider, as mitigating evidence, any 'matter concerning the character or record of the defendant, or the circumstances of his offense,'" the Court concluded that the statute, as applied, did not violate the Eighth Amendment. 110 S. Ct. at 1083-84. Moreover, the Court concluded that the trial court's examples of mitigating circumstances did not preclude the jury's considering any other mitigating factors. Id. at 1084.

Blystone is dispositive on Zettlemoyer's statutory constitutional issue. The trial court here instructed the jury on mitigating circumstances as follows:

There are in the law -- well, there's an unlimited number. They list eight. They list seven and they say, any other evidence of mitigation concerning the character. Four of them may be applicable to this case, the others are not. They are one, that the defendant has no significant history of prior criminal convictions; two, he was under the influence of extreme mental or emotional distress; the third one, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; four, the age of the defendant at the time of the crime and then this eighth one; any other evidence of mitigation, which would be the fifth one to consider, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

All of the evidence from both sides that you have heard earlier, of course, during the trial in chief, all of that which has any bearing in your judgment upon aggravating or mitigating circumstances as I have mentioned them is important or proper for you to consider.

App. at 203-04.

The court, therefore, instructed the jury that several mitigating circumstances might apply to Zettlemoyer for this particular crime. The trial court instructed the jury to consider Zettlemoyer's age, mental and emotional status at the time of the crime, and absence of a criminal record. These factors distinguished him from other defendants and provided the individualized consideration required by Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976) (individualized sentencing required by fundamental respect for humanity underlying Eighth Amendment). Additionally, because the jury retained discretion in assigning weight to these factors and in weighing them against any aggravating circumstances, the statutory plan did not "automatically" impose a sentence of death. See id. (statute that automatically imposes death sentence without particularized consideration of character and record of defendant struck down); Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S. Ct. 3001, 3006-07, 49 L. Ed. 2d 974 (1976) (same).

The Blystone Court held that a trial court's specific instruction to the jury to consider, as mitigating evidence, any "matter concerning the character or record of the defendant, or the circumstances of his offense," complied with the requirements of the Eighth Amendment. Blystone, 110 S. Ct. at 1083-84. See also Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 2947, 106 L. Ed. 2d 256 (1989) (jury must be able to consider and to give effect to any mitigating evidence relevant to defendant's background, character, or circumstances of crime); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978) (plurality opinion) (sentencer must be allowed to consider any aspect of defendant's character or record and any circumstances of the offense as mitigating factors). The trial court here gave this exact instruction. See App. at 203. Additionally, the court instructed the jury to consider all evidence presented from both sides during both the guilt and sentencing phases of trial "which has any bearing in your judgment upon aggravating and mitigating circumstances." Id. at 203-04 (emphasis added). This broad instruction permitted the jury to consider mitigating factors in addition to the character, record, or offense evidence required by Blystone. This unrestricted consideration of mitigating circumstances clearly meets the Eighth Amendment's requirements. See Blystone, 110 S. Ct. at 1083-84; Penry, 109 S. Ct. at 2947; Lockett, 438 U.S. at 604, 98 S. Ct. at 2964 (plurality opinion). We, therefore, reject Zettlemoyer's argument that the statute is unconstitutional as applied to him.

C. Competency of Counsel

Zettlemoyer argues that his trial counsel was ineffective for not presenting competent psychological testimony on the issue of diminished capacity at the trial and not presenting psychological testimony or affirmative evidence at the sentencing hearing. We will address these contentions seriatim.

1. Guilt Phase

During the guilt phase of the trial, Zettlemoyer's counsel presented Dr. Stanley Schneider to testify to his diagnosis of Zettlemoyer's mental condition. Dr. Schneider is a clinical psychologist licensed in Pennsylvania who had been Director of the Department of Psychology at the Harrisburg State Hospital. App. at 114. Dr. Schneider interviewed and tested Zettlemoyer on three separate occasions, interviewed his paternal grandparents, parents, and one sister, and reviewed Zettlemoyer's school and police records. Id. at 126. During his meetings with Zettlemoyer, Dr. Schneider administered seven different psychological tests within three general categories; intellectual functioning,*fn7 personality,*fn8 and "projected tests" which gave Zettlemoyer the opportunity to project his own "unique thoughts, ideas, anxieties, needs, [and] conflicts" in response to certain relatively unstructured stimuli.*fn9 Id. at 128-30. The tests indicated that Zettlemoyer functioned in the average range of intelligence with some deficits in his common sense and practical judgment, particularly as it related to interpersonal relationships. Id. at 131. Zettlemoyer's intelligence was also weak when compared to his age group and the personality test revealed that he apparently distorted his responses to exaggerate his symptoms. Id. at 131-32. Dr. Schneider did not find any evidence of organic or physical involvement or any suggestion of trauma to the brain or central nervous system. Id. at 133. Dr. Schneider testified that ...


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